State v. Roberts

[Cite as State v. Roberts, 2021-Ohio-90.]
COURT OF APPEALS
RICHLAND COUNTY, OHIO
FIFTH APPELLATE DISTRICT
JUDGES:
STATE OF OHIO : Hon. W. Scott Gwin, P.J.
: Hon. John W. Wise, J.
Plaintiff-Appellee : Hon. Earle E. Wise, J.
:
-vs- :
: Case No. 2020 CA 0035
AKILI ROBERTS :
:
Defendant-Appellant : OPINION
CHARACTER OF PROCEEDING: Criminal appeal from the Richland County
Court of Common Pleas, Case No. 2019-
CR-0403
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: January 15, 2021
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
GARY BISHOP MEGAN PATITUCE
Richland County Prosecutor AARON SCHWARTZ
32 South Park Street 16855 Industrial Parkway
Mansfield, OH 44902 Strongsville,OH 44149
[Cite as State v. Roberts, 2021-Ohio-90.]
Gwin, P.J.
{¶1} Defendant-appellant Akili Roberts [“Roberts”] appeals his convictions and
sentences after a jury trial in the Richland County Court of Common Pleas.
Facts and Procedural History
{¶2} Cuyahoga County Sheriff's Office Deputy Michael Twombly, and his K-9
Officer Ciga were at the Orange Avenue Post Office in Cleveland, Ohio working parcel
drug interdiction by assignment. On February 7, 2019, Ciga alerted to a package. Before
opening the package, Deputy Twombly applied for and received a federal search warrant.
The parcel was photographed, opened, and searched. Inside, wrapped in cellophane,
inside of a freezer bag, was a parcel wrapped up like a present. This parcel contained
over 500 grams of cocaine. The parcel, the wrapping, and the contents were
photographed. The package was closed, resealed, and turned over to the postal
inspectors to prepare for delivery. A location device, a GPS and a transmitter, were
attached to the package so as to alert law enforcement when the package was opened.
{¶3} On the afternoon of February 7, 2019, Sergeant Steve Blust and Detective
Wayne Liggett of the Mansfield Police Department did an initial drive by of the intended
address of the package, 222 Penn Avenue in Mansfield, Ohio for surveillance purposes.
Roberts’s vehicle, identified by its license plate, was parked in front of the house. A
second drive-by was conducted by Sergeant Blust and a postal inspector on February 8,
2019. Sergeant Blust observed two black male subjects at the address sitting in a Grand
Prix, a car that was registered to Roberts.
{¶4} On February 8, 2019, a controlled delivery to the address listed on the
package, 222 Penn Avenue, in Mansfield, Ohio, was made by a postal inspector,
Richland County, Case No. 2020 CA 0035 3
monitored by Sergeant Blust of METRICH. The package was left on the porch while law
enforcement officers watched the house. Officers soon saw Roberts’s car. Roberts was
driving and Herbert Taylor was in the passenger seat.
{¶5} Taylor ran out of the car, grabbed the package, jumped back in the car, and
the car attempted to speed away. The sensor warning from the box went off, which
indicated that the box had been opened. The car was stopped by Detective Rahall and
other law enforcement officers. Taylor was holding the package when the vehicle was
stopped. When the vehicle was searched, law enforcement found, in addition to the
postal package containing the cocaine, a few cell phones. The contents of these phones
were downloaded for information and analyzed by Detective Liggett. On one phone, there
was a message sent on the 7th of February, that read, "(S) end me the number; it's Penn,
right?"
{¶6} On April 30, 2019, a Confidential Informant (CI) made a controlled drug buy
from Roberts. Before going to the location of the purchase, the CI made a controlled
phone call, dialed by the officers, to one of the subjects of the investigation, Herbert
Taylor. Detective Nicole Gearhart, assigned to METRICH, searched the CI to make sure
she had no contraband on her person and then she fitted her with the transmitter
recording device that was used during the transaction. Before the CI left for the pre-
arranged location, Detective Perry Wheeler searched her vehicle. He also issued her the
control money, which had been photocopied to record serial numbers, for the buy. Then,
the CI drove to 264 East First Street, Mansfield, Ohio, followed by law enforcement.
{¶7} Officers could not watch the video of the controlled buy in real time;
however, they could hear the audio in real time. When the CI returned from the buy,
Richland County, Case No. 2020 CA 0035 4
Detective Gearhart removed the recording device from her. The video recording from the
CI showed the CI arriving at the house, the CI handing money to Roberts, who in turn can
be heard on the tape giving the order for the drugs. When the CI left the house, she drove
to the station, followed by law enforcement. When she arrived at the station, the recording
device was removed. Detective Wheeler recovered the drugs and subsequently
submitted them to the Crime Lab for analysis. The CI was not allowed to touch the
equipment and the officers watched the video as it was being downloaded to verify the
events of the buy and to corroborate what they were hearing with what was on the video.
The Cl was also debriefed, asked to tell the officers what happened from the time that
she left until the time she returned. The CI in this case, Tara Sauer, tragically passed
away prior to trial.
{¶8} On May 9, 2019, the same CI made another controlled drug buy from
Roberts. Detective Gearhart again searched the CI when she arrived at the law
enforcement office. She fitted the CI with the transmitter recording device, activated it
before she left, and deactivated it and collected it when she returned. Detective Wheeler
issued the buy money. Detective Gearhart downloaded the video burned it onto CD, and
completed the integrity report on the equipment. Sergeant Joseph Soehnlen collected
the drugs directly from the CI after the buy. Detective Wheeler took the drugs from
Sergeant Soehnlen, packaged them, and submitted them to the Crime Lab for analysis.
{¶9} By May 10, 2019, arrest warrants for Roberts and Taylor were certified,
signed and active. Detective Wheeler worked surveillance on one of two residences
associated with the Roberts. On May 10, 2019, Roberts was driving the same vehicle
that he had been driving on February 8, 2019, a gold Pontiac Grand Prix, the day of the
Richland County, Case No. 2020 CA 0035 5
controlled delivery to the address on Penn. Detective Wheeler followed him in an
unmarked vehicle. Roberts stopped his car, got out, and started walking towards
Wheeler's unmarked vehicle. Detective Wheeler then stepped out of his vehicle, arrested
Roberts, and transported him to the Richland County Jail. Roberts had a wallet, a social
security card, and a cell phone. Inside of Roberts’s wallet were bills with serial numbers
that matched those used in the controlled buy on May 9, 2019. Also found on his person
were keys, later identified as keys to a safe located in a house on East First Street.
{¶10} On May 10, 2019, in addition to the arrest warrant for Roberts, law
enforcement also had a search warrant for a house on 264 East First Street. Present at
that address was Roberts’s older son Akili Roberts, Jr., Erica Carr, Mercedes Granados,
Brianna Johnson, and Roberts’s younger son, Akki. Mail addressed to Roberts was also
found at that address.
{¶11} Sergeant Soehnlen and Detective Rahall started upstairs, where they first
encountered Erica Carr as she left the bathroom, where she was attempting to flush small
packets of drugs. Upstairs, in the northwest bedroom, was a safe. Access to that safe
was gained from keys that had been found in Roberts’s possession earlier that day when
he was arrested. While Detective Soehnlen stayed upstairs, Special Agent Minichello
brought Roberts’s keys upstairs and used them to open the safe. Inside of the safe, police
found wrapped up bags, a scale, a box of latex gloves or some type of surgical gloves.
They also found a large number of small baggies that Sergeant Soehnlen testified were
commonly used for packaging drugs. Also found on the nightstand was Inositol powder,
a dietary supplement, which is used as a cutting agent for drugs.
Richland County, Case No. 2020 CA 0035 6
{¶12} Neither the keys, nor the safe, were taken into evidence, so as not to cause
any inconvenience to the residents. Law enforcement never found any other key that fit
the safe in the house at 264 East First Street.
{¶13} On April 18, 2019, in Case No. 2019-CR-00339, Roberts was indicted on
one count of Possession of Cocaine, in violation of R.C. 2925.11(A), a felony of the first
degree, with a Forfeiture specification, a violation of R. C. 2941.1417(A).
{¶14} On June 7, 2019, in Case No. 2019-CR-0403, Roberts was indicted on a
three-count indictment. Count One charged Roberts with Trafficking in a Fentanyl-related
Compound, in violation of R.C. 2925.03(A)(1), a felony of the fourth degree. Count Two
charged Roberts with Trafficking in Heroin, in violation of R.C. 2925.03(A)(1), a felony of
the fourth degree. Count Three charged Roberts with Trafficking in Cocaine, in violation
of R.C. 2925.03(A)(1), a felony of the fifth degree.
{¶15} On July 12, 2019, Case No. 2019-CR-0404, Roberts was indicted on one
count of Trafficking in Heroin, in violation of R.C. 2925.03(A)(2)&(C)(6)(e), a felony of the
second degree, with a Firearm specification, in violation of R.C. 2941.141, and with two
Forfeiture specifications, in violation of R.C. 2941.1417, one count of Possession of
Heroin, in violation of R.C. 2925.11(A)&(C)(6)(d), a felony of the second degree, with a
Firearm specification, in violation of R.C. 2941.141, and with two Forfeiture specifications,
in violation of R.C. 2941.1417, one count of Trafficking in Fentanyl-related Compound in
violation of R.C. 2925.03(A)(2)&(C)(9)(e), a felony of the second degree, with a Firearm
specification, in violation of R.C. 2941.141, and with two Forfeiture specifications, in
violation of R.C. 2941.1417; one count of Possession of Fentanyl in violation of R.C.
2925.11(A)&(C)(11)(D), a felony of the second degree, with a Firearm specification, in
Richland County, Case No. 2020 CA 0035 7
violation of R.C. 2941.141, and with two Forfeiture specifications, in violation of R.C.
2941.1417, one count of Aggravated Trafficking in Drugs in violation of R.C.
2925.03(A)(2)7(C)(1)(a), a felony of the fourth degree, with a Firearm specification, in
violation of R.C. 2941.141, and with two Forfeiture specifications, in violation of R.C.
2941.1417, and Aggravated Possession of Drugs in violation of R.C.
2925.11(A)&(C)(1)(A), a felony of the fifth degree, with a Firearm specification, in violation
of R.C. 2941.141, and with two Forfeiture specifications, in violation of R.C. 2941.1417.
{¶16} On October 23, 2019 the trial court, over defense objection, granted the state's
motion for joinder, joining all three of the cases together for the purposes of trial. The three
cases proceeded to jury trial on March 2, 2020.
{¶17} The jury found Roberts guilty of all three Counts in Case no. 2019-CR-0403,
the jury found Roberts not guilty of the sole count in 2019-CR-0339 , and the jury found
Roberts not guilty on all six counts in 2019-CR-0404.
{¶18} As to 2019-CR-0403, the Court sentenced Roberts to eighteen months each
on Counts 1 and 2 and twelve months on Count 3, to be served consecutively, for an
aggregate prison term of four years.
Assignments of Error
{¶19} Roberts raises five Assignments of Error,
{¶20} “I. THE TRIAL COURT COMMITTED REVERSIBLE ERROR IN
GRANTING THE STATE'S MOTION TO JOIN THE TWO INDICTMENTS.
{¶21} “II. THE TRIAL COURT ERRED IN ADMITTING VIDEOS RECORDED BY
A DECEASED CONFIDENTIAL INFORMANT IN VIOLATION OF MR. ROBERTS'S
SIXTH AMENDMENT RIGHTS.
Richland County, Case No. 2020 CA 0035 8
{¶22} “III. THE TRIAL COURT ABUSED ITS DISCRETION IN DENYING A
MOTION FOR MISTRIAL MADE AS A RESULT OF PROSECUTORIAL MISCONDUCT.
{¶23} “IV. MR. ROBERTS'S CONVICTION WAS AGAINST THE MANIFEST
WEIGHT OF THE EVIDENCE.
{¶24} “V. THE TRIAL COURT ERRED IN SENTENCING MR. ROBERTS TO A
FOUR-YEAR TERM OF INCARCERATION.”
I.
{¶25} In his First Assignment of Error, Roberts argues the trial court's decision to
grant the state's motion to join the three cases was an abuse of discretion.
Standard of Appellate Review.
{¶26} “Two or more offenses may be charged in the same indictment, information
or complaint in a separate count for each offense if the offenses charged * * * are of the
same or similar character * * *.” Crim.R. 8(A). Crim.R. 8(A) also allows the joinder of
offenses that “are based on the same act or transaction, or are based on two or more
acts or transactions connected together or constituting parts of a common scheme or
plan, or are part of a course of criminal conduct.” Permitting joinder “conserves resources
by avoiding duplication inherent in multiple trials and minimizes the possibility of
incongruous results that can occur in successive trials before different juries.” State v.
Hamblin, 37 Ohio St.3d 153, 158, 524 N.E.2d 476 (1988).
{¶27} “Notwithstanding the policy in favor of joinder,” Crim.R. 14 permits a
defendant to request severance of the counts in an indictment “on the grounds that he or
she is prejudiced by the joinder of multiple offenses.” State v. LaMar, 95 Ohio St.3d 181,
2002-Ohio-2128, 767 N.E.2d 166, ¶ 49. The defendant “has the burden of furnishing the
Richland County, Case No. 2020 CA 0035 9
trial court with sufficient information so that it can weigh the considerations favoring
joinder against the defendant’s right to a fair trial.” State v. Torres, 66 Ohio St.2d 340,
343, 421 N.E.2d 1288 (1981). But even if the equities appear to support severance, the
state can overcome a defendant’s claim of prejudicial joinder by showing either that (1) it
could have introduced evidence of the joined offenses as other acts under Evid.R. 404(B)
or (2) the “evidence of each crime joined at trial is simple and direct,” State v. Lott, 51
Ohio St.3d 160, 163, 555 N.E.2d 293 (1990). See, State v. Ford, 158 Ohio St.3d 139,
2019-Ohio-4539, 140 N.E.3d 616, ¶103.
{¶28} We review a trial court’s ruling on a Crim.R. 14 motion for an abuse of
discretion. State v. Hand, 107 Ohio St.3d 378, 2006-Ohio-18, 840 N.E.2d 151, ¶ 166;
Ford at ¶ 103. A defendant who appeals the denial of relief bears a heavy burden:
He must affirmatively demonstrate (1) that his rights were
prejudiced, (2) that at the time of the motion to sever he provided the trial
court with sufficient information so that it could weigh the considerations
favoring joinder against the defendant’s right to a fair trial, and (3) that given
the information provided to the court, it abused its discretion in refusing to
separate the charges for trial.
State v. Schaim, 65 Ohio St.3d 51, 59, 600 N.E.2d 661 (1992); Ford at ¶106. An abuse
of discretion exists where the reasons given by the court for its action are clearly
untenable, legally incorrect, or amount to a denial of justice, or where the judgment
reaches an end or purpose not justified by reason and the evidence. Tennant v. Gallick,
9th Dist. Summit No. 26827, 2014-Ohio-477, ¶35; In re Guardianship of S .H., 9th Dist.
Richland County, Case No. 2020 CA 0035 10
Medina No. 13CA0066–M, 2013–Ohio–4380, ¶ 9; State v. Firouzmandi, 5th Dist. Licking
No. 2006–CA–41, 2006–Ohio–5823, ¶54.
Issue for Appellate Review: Whether the trial court abused its discretion in
joining the case for trial.
{¶29} Roberts argues that beyond the base allegations of drugs, the facts in the
three cases were distinct. One case involved alleged sales to an informant, one case
involved the execution of a search warrant at a home, and the third case involved a co-
defendant's pick-up of a box containing drugs.[Appellant’s Brief at 4-5]. The state argues
all of the cases are tied together. They take place within a short span of time between
February and May, 2019. All three of the cases were investigated by the same law
enforcement agency and officers: the METRICH (Metro-Richland County) Enforcement
Unit. In two of the cases, Roberts is charged with trafficking and in the third, with
possessing a large quantity of cocaine. The state argues the offenses "are based on two
or more acts or transactions connected together or constituting parts of a common
scheme or plan, or are part of a course of criminal conduct," and were rightly joined.
[Appellee’s Brief at 7].
{¶30} Roberts fails to show that the trial court’s judgment reaches an end or
purpose not justified by reason and the evidence or that the reasons given by the court
for its action are clearly untenable, legally incorrect, or amounted to a denial of justice
and he therefore fails to establish an abuse of discretion.
{¶31} In the case at bar, the evidence concerning the mailing, delivery and pick-
up of the box containing five hundred grams of cocaine and the evidence of the two
controlled buys led to the issuance of the search warrant. The evidence of each of the
Richland County, Case No. 2020 CA 0035 11
crimes was simple and direct. The jury was clearly capable of segregating the evidence
of the multiple charges when, as in the present case, the evidence of each crime is
uncomplicated. See State v. Hamblin, 37 Ohio St.3d 153, 159, 524 N.E.2d 476 (1988).
The evidence did not confuse the jury and was not highly prejudicial. The jury in the case
at bar found Roberts not guilty of all six charges and the attendant specifications, the
most serious of the charges, in Case Number 2019 CR 0404, and also not guilty of
possession of cocaine with its attendant specification in Case No. 2019 CR0339. The
jury convicted Roberts only of the controlled buy charges that were recorded with both
audio and video.
{¶32} We cannot conclude that Roberts was prejudiced by the joinder. We
conclude that the trial court did not abuse its discretion in joining the offenses for trial.
{¶33} Roberts’s First Assignment of Error is overruled.
II.
{¶34} In his Second Assignment of Error, Roberts contends that the trial court
erred when it permitted the state to introduce the audio and video recordings of the
undercover drug buys that took place on April 30, 2019 and May 9, 2019 into evidence.
More specifically, Roberts argues that pursuant to the U.S. Supreme Court’s decision in
Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004), the taped
statements should have been excluded by the trial court as they contained out-of-court
statements made by a confidential informant who did not appear or testify at trial.
Standard of Appellate Review
{¶35} “[A] trial court is vested with broad discretion in determining the admissibility
of evidence in any particular case, so long as such discretion is exercised in line with the
Richland County, Case No. 2020 CA 0035 12
rules of procedure and evidence.” Rigby v. Lake Cty., 58 Ohio St.3d 269, 271, 569 N.E.2d
1056 (1991). “However, we review de novo evidentiary rulings that implicate the
Confrontation Clause. United States v. Henderson, 626 F.3d 326, 333 (6th Cir. 2010).”
State v. McKelton, 148 Ohio St.3d 261, 2016-Ohio-5735, 70 N.E.3d 508, ¶97.
{¶36} We note that any error will be deemed harmless if it did not affect the
accused’s “substantial rights.” Before constitutional error can be considered harmless, we
must be able to “declare a belief that it was harmless beyond a reasonable doubt.”
Chapman v. State of Cal., 386 U.S. 18, 24, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967).
Issue for Appellate Review: Whether the trial court violated Roberts’s right to
confrontation by allowing the state to introduce video and audio recordings made during
the controlled drugs on April 30, 2019 and May 9, 2019.
{¶37} The Sixth Amendment to the United States Constitution provides that “[i]n
all criminal prosecutions, the accused shall enjoy the right * * * to be confronted with the
witnesses against him.”
{¶38} In Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177(2004), the Supreme Court of the United States held that out-of-court statements that are
testimonial are barred, under the Confrontation Clause, unless the witness is unavailable
and the defendant had a prior opportunity to cross-examine the witness, regardless of
whether the statements are deemed reliable by the trial court. The Court defined these
“testimonial” statements to include “ex parte in-court testimony or its functional equivalent-
that is, material such as affidavits, custodial examinations, prior testimony that the
defendant was unable to cross-examine, or similar pretrial statements that declarants
would reasonably expect to be used “prosecutorially” and “extrajudicial statements * * *
Richland County, Case No. 2020 CA 0035 13
contained in formalized testimonial materials, such as affidavits, depositions, prior
testimony, or confessions,” and “statements that were made under circumstances which
would lead an objective witness reasonably to believe that the statement would be
available for use at a later trial.” 541 U.S. at 51-52.
{¶39} Thus as to “testimonial evidence,” “the Sixth Amendment demands what the
common law required: unavailability and a prior opportunity for cross-examination.” 541
U.S. at 68. “To trigger a violation of the Confrontation Clause, an admitted statement must
be testimonial in nature, and must be hearsay.” United States v. Deitz, 577 F.3d 672, 683
(6th Cir.2009). A statement is testimonial where a reasonable person would anticipate
that his or her statement would be used “against the accused in investigating and
prosecuting the crime.” United States v. Cromer, 389 F.3d 662, 675 (6th Cir. 2004). See
also State v. Stahl, 111 Ohio St.3d 186, 2006-Ohio-5482, 855 N.E.2d 834, at paragraph
two of the syllabus.
{¶40} In the case at bar, we find that any statements made by the confidential
informant on the recordings to be non-testimonial in nature, and thus, the Confrontation
Clause does not bar them. The confidential informant made the statements to Roberts
and his co-defendant who are not law-enforcement officers, and the statements “were not
the result of any official examination.” State v. Nix, 1st Dist. No. C-030696, 2004-Ohio-
5502, ¶75.
{¶41} Roberts does not identify with specificity any statement contained on the
recordings that he contends are objectionable and prejudicial. It does not appear from
the record that the state used or argued at trial that any statements made by the
confidential informant implicated Roberts in the sale or possession of drugs, or that any
Richland County, Case No. 2020 CA 0035 14
statements established the elements of the crimes for which Roberts was indicted. See,
United States v. Hearn, 500 F.3d 479, 483-486(6th Cir. 2007).
{¶42} Further, “[t]he testimony at issue was offered to explain the subsequent
investigative activities of the witnesses. It was not offered to prove the truth of the matter
asserted. It is well established that extrajudicial statements made by an out-of-court
declarant are properly admissible to explain the actions of a witness to whom the
statement was directed. See United States v. Zamarripa (C.A.8, 1976), 544 F.2d 978,
982, certiorari denied 429 U.S. 1111, 97 S.Ct. 1149, 51 L.Ed.2d 566; State v. Lopez
(1957), 182 Kan. 46, 51-2, 318 P.2d 662, 666. The testimony was properly admitted for
this purpose.” State v. Thomas, 61 Ohio St.2d 223, 232, 400 N.E.2d 401(1980).
{¶43} In the case at bar, the confidential informants statements are admissible as
providing context for Roberts’s statements and actions, not for the truth of the matter
asserted. See United States v. Sexton, 119 Fed.Appx. 735, 743 (6th Cir.), vacated on
other grounds, 2005 WL 6011238 (2005). Therefore, because the statements of the
confidential informant are not hearsay, they fall outside of the scope of the Confrontation
Clause and the recorded events of April 30, 2019 and May 9, 2019 were properly admitted
at Roberts’s trial. State v. Suber, 5th Dist. Licking No. 16 CA 14, 2016-Ohio-7497.
{¶44} Roberts’s Second Assignment of Error is overruled.
III.
{¶45} In his Third Assignment of Error, Roberts maintains that the trial court
abused its discretion in denying his motion for a mistrial after the state's misconduct.
Standard of Appellate Review.
Richland County, Case No. 2020 CA 0035 15
{¶46} “Mistrials need to be declared only when the ends of justice so require and
a fair trial is no longer possible.” State v. Franklin, 62 Ohio St.3d 118, 127, 580 N.E.2d 1(1991). The standard of review for evaluating a trial court’s decision to grant or deny a
mistrial is abuse of discretion. State v. Maurer, 15 Ohio St.3d 239, 473 N.E.2d 768 (1984).
In reviewing a claim that a mistrial should have been granted, the Ohio Supreme Court
has noted “[t]his court has instead adopted an approach which grants great deference to
the trial court’s discretion in this area, in recognition of the fact that the trial judge is in the
best position to determine whether the situation in his courtroom warrants the declaration
of a mistrial.” State v. Shaffer, 5th Dist. Richland No. 2003-CA-0108, 2004-Ohio-3717,
¶18 quoting [State v.] Widner [68 Ohio St.2d 188, 429 N.E.2d 1065(1981)]. See, also,
Wade v. Hunter, 336 U.S. 684, 687, 69 S.Ct. 834, 836, 93 L.Ed. 974(1949).
{¶47} An abuse of discretion can be found where the reasons given by the court
for its action are clearly untenable, legally incorrect, or amount to a denial of justice, or
where the judgment reaches an end or purpose not justified by reason and the evidence.
Tennant v. Gallick, 9th Dist. Summit No. 26827, 2014-Ohio-477, ¶35; In re Guardianship
of S.H., 9th Dist. Medina No. 13CA0066–M, 2013–Ohio–4380, ¶ 9; State v. Firouzmandi,
5th Dist. Licking No. 2006–CA–41, 2006–Ohio–5823, ¶54
Issue for Appellate Review: Whether the trial court abused its discretion by
denying Roberts’s motion for a mistrial.
{¶48} In this case, the trial court allowed the jurors to submit questions. At the
conclusions of Wayne Liggett’s testimony, a juror submitted a question, but the defense,
at sidebar, objected to the question. 4T at. 480-4811. The trial court sustained the
1 For clarity, the jury trial transcript will be referred to as, “__T.__,” signifying the volume and the page
number.
Richland County, Case No. 2020 CA 0035 16
objection to which the state replied: "There's a defense objection? Note it's a defense
objection." 4T. at 482. The parties stepped back from the bench, and the trial court
advised the jury that it would not ask the question. Specifically, the trial court stated:
“Ladies and gentlemen, I can't ask the witness this particular question. Not that it wasn't
relevant or anything, but for evidentiary ruling reasons. With that, we're going to let
Detective Liggett step down. He's done. And we're going to go ahead and do lunch." 4T.
at 482. The state then replied; "I didn't know if the Court was going to sustain the defense's
objection." 4T. at 482. After the jury had been excused, the defense lodged an objection
to the state's statement and moved for a mistrial. 4T. at 483-88.
{¶49} Crim. R. 52(A) defines harmless error, “Any error, defect, irregularity, or
variance which does not affect substantial rights shall be disregarded.” Before
constitutional error can be considered harmless, we must be able to “declare a belief that
it was harmless beyond a reasonable doubt.” Chapman v. California 386 U.S. 18, 24, 87
S.Ct. 824, 17 L.Ed.2d 705(1967). Where there is no reasonable possibility that unlawful
testimony contributed to a conviction, the error is harmless and therefore will not be
grounds for reversal. State v. Lytle, 48 Ohio St.2d 391, 358 N.E.2d 623(1976), paragraph
three of the syllabus, vacated on other grounds in Lytle v. Ohio, 438 U.S. 910, 98 S.Ct.
3135, 57 L.Ed.2d 1154(1978).
{¶50} In the case at bar, the jury acquitted Roberts of the six most serious charges
and specifications and acquitted Roberts of seven of the ten indicted charges against
Roberts. Accordingly, we find there is no reasonable possibility that comments of the
prosecutor contributed to Roberts’s conviction.
Richland County, Case No. 2020 CA 0035 17
{¶51} The trial court did not abuse its discretion in denying Roberts’s motion for a
mistrial.
{¶52} Roberts’s Third Assignment of Error is overruled.
IV.
{¶53} In his Fourth Assignment of Error, Roberts maintains that his convictions
are against the manifest weight of the evidence. Although he phrases his assignment of
error in terms of “manifest weight,” Roberts nonetheless contends, “Assuming arguendo
that the videos were admissible, the evidence was still insufficient to establish Mr. Roberts's
guilt beyond a reasonable doubt…. There is no evidence that Mr. Roberts engaged in a
drug transaction.” [Appellant’s Brief at 11].
Standard of Appellate Review– Sufficiency of the Evidence.
{¶54} The Sixth Amendment provides: “In all criminal prosecutions, the accused
shall enjoy the right to a speedy and public trial, by an impartial jury....” This right, in
conjunction with the Due Process Clause, requires that each of the material elements of
a crime be proved to a jury beyond a reasonable doubt. Alleyne v. United States, 570
U.S. __, 133 S.Ct. 2151, 2156, 186 L.Ed.2d 314 (2013); Hurst v. Florida, 136 S.Ct. 616,
621, 193 L.Ed.2d 504 (2016). The test for the sufficiency of the evidence involves a
question of law for resolution by the appellate court. State v. Walker, 150 Ohio St.3d 409,
2016-Ohio-8295, 82 N.E.3d 1124, ¶30. “This naturally entails a review of the elements
of the charged offense and a review of the state's evidence.” State v. Richardson, 150
Ohio St.3d 554, 2016-Ohio-8448, 84 N.E.3d 993, ¶13.
{¶55} When reviewing the sufficiency of the evidence, an appellate court does not
ask whether the evidence should be believed. State v. Jenks, 61 Ohio St.3d 259, 574
Richland County, Case No. 2020 CA 0035 18
N.E.2d 492 (1991), paragraph two of the syllabus, superseded by State constitutional
amendment on other grounds as stated in State v. Smith, 80 Ohio St.3d 89, 102 at n.4,
684 N.E.2d 668 (1997; Walker, at ¶30. “The relevant inquiry is whether, after viewing the
evidence in the light most favorable to the prosecution, any rational trier of fact could have
found the essential elements of the crime proven beyond a reasonable doubt.” Jenks at
paragraph two of the syllabus. State v. Poutney, 153 Ohio St.3d 474, 2018-Ohio-22, 97
N.E.3d 478, ¶19. Thus, “on review for evidentiary sufficiency we do not second-guess
the jury's credibility determinations; rather, we ask whether, ‘if believed, [the evidence]
would convince the average mind of the defendant's guilt beyond a reasonable doubt.’”
State v. Murphy, 91 Ohio St.3d 516, 543, 747 N.E.2d 765 (2001), quoting Jenks at
paragraph two of the syllabus; Walker at ¶31. We will not “disturb a verdict on appeal on
sufficiency grounds unless ‘reasonable minds could not reach the conclusion reached by
the trier-of-fact.’” State v. Ketterer, 111 Ohio St.3d 70, 2006-Ohio-5283, 855 N.E.2d 48,
¶ 94, quoting State v. Dennis, 79 Ohio St.3d 421, 430, 683 N.E.2d 1096 (1997); State v.
Montgomery, 148 Ohio St.3d 347, 2016-Ohio-5487, 71 N.E.3d 180, ¶74.
Issue for Appellate Review: Whether, after viewing the evidence in the light
most favorable to the prosecution, the evidence, if believed, would convince the
average mind of Roberts’s guilt on each element of the crimes for which he was
convicted beyond a reasonable doubt.
{¶56} R.C. 2925.03(A) sets forth the essential elements of trafficking in drugs: "No
person shall knowingly sell or offer to sell a controlled substance."
{¶57} In Case Number 2019 CR 0403 Roberts was charged with knowingly selling
or offering to sell a fentanyl related substance on April 30, 2019 [Count 1], heroin on May
Richland County, Case No. 2020 CA 0035 19
9, 2019 [Count 2], and cocaine on May 9, 2019 [Count 3]. There is no dispute as to either
the identity or quantity of the drug involved in each count.
{¶58} Whether a person acts knowingly can only be determined, absent a
defendant's admission, from all the surrounding facts and circumstances, including the
doing of the act itself.” State v. Huff, 145 Ohio App.3d 555, 563, 763 N.E.2d 695 (1st Dist.
2001) (Footnote omitted.) Thus, “[t]he test for whether a defendant acted knowingly is a
subjective one, but it is decided on objective criteria.” State v. McDaniel, 2nd Dist.
Montgomery No. 16221, 1998 WL 214606 (May 1, 1998), citing State v. Elliott, 104 Ohio
App.3d 812, 663 N.E.2d 412 (10th Dist. 1995).
{¶59} In the case at bar, the jury was instructed on complicity. 4T. at 637. R.C.
2923.03(A)(2) sets forth the elements for complicity and provides, in relevant part:
No person, acting with the kind of culpability required for the
commission of an offense, shall do any of the following:
***
(2) Aid or abet another in committing the offense;
***
(B) It is no defense to a charge under this section that no person with
whom the accused was in complicity has been convicted as a principal
offender.
(C) No person shall be convicted of complicity under this section
unless an offense is actually committed, but a person may be convicted of
complicity in an attempt to commit an offense in violation of section 2923.02
of the Revised Code.
Richland County, Case No. 2020 CA 0035 20
***
{¶60} It is true that a person's mere association with a principle offender is not
enough to sustain a conviction based on aiding and abetting. State v. Sims, 10 Ohio
App.3d 56, 58, 460 N.E.2d 672, 674-675 (8th Dist. 1983). In order to constitute aiding and
abetting, the accused must have taken some role in causing the commission of the
offense. Id. With respect to the requirements for a conviction for complicity by aiding and
abetting, the Supreme Court of Ohio has stated,
To support a conviction for complicity by aiding and abetting pursuant
to R.C. 2923.03(A)(2), the evidence must show that the defendant
supported, assisted, encouraged, cooperated with, advised, or incited the
principal in the commission of the crime, and that the defendant shared the
criminal intent of the principal. Such intent may be inferred from the
circumstances surrounding the crime.
State v. Johnson, 93 Ohio St.3d 240, 2001–Ohio–187, 749 N.E.2d 749, at syllabus.
{¶61} Aiding and abetting may be shown by both direct and circumstantial
evidence, and participation may be inferred from presence, companionship, and conduct
before and after the offense is committed. State v. Cartellone, 3 Ohio App.3d 145, 150,
444 N.E.2d 68, (8th Dist. 1981), citing State v. Pruett, 28 Ohio App.2d 29, 34, 273 N.E.2d
884 (4th Dist. 1971); See also, State v. Mendoza, 137 Ohio App.3d 336, 342, 738 N.E.2d
822(3rd Dist. 2000), quoting State v. Stepp, 117 Ohio App.3d 561, 568–569, 690 N.E.2d
1342(4th Dist. 1997).
{¶62} Aiding and abetting may also be established by overt acts of assistance
such as driving a getaway car or serving as a lookout. State v. Cartellone, 3 Ohio App.3d
Richland County, Case No. 2020 CA 0035 21
at 150, 444 N.E.2d 68. See also, State v. Trocodaro, 36 Ohio App.2d 1, 301 N.E.2d 898(10th Dist. 1973); State v. Lett, 160 Ohio App.3d 46, 52, 2005–Ohio–1308, 825 N.E.2d
1158, 1163 (8th Dist.); State v. Polite, 5th Dist. Stark No. 2017 CA 00129, 2018-Ohio-
1372, ¶56.
{¶63} The events of April 30, 2019 and May 9, 2019 were controlled buys that
were recorded in real time by the confidential informant. State’s Exhibit 2 and State’s
Exhibit 3; 2T. at 318; 340; 344 3T. at 578. Roberts is seen in both videos. 3T. at 339;
344; 388.
{¶64} On April 30, 2019, Roberts is seen on the couch with a significant number
of dollar bills in in hands. Money was handed to Roberts by the confidential informant. 2T.
at 391. The confidential informant is seen in the basement while the codefendant weighs
and packages the drugs. He hands the drugs to the confidential informant in the living
room.
{¶65} On May 9, 2019, the confidential informant is seen entering the vehicle and
driving to the residence. The co-defendant answers the door. The confidential informant
waits in the living room. Both the co-defendant and Roberts return to the living room. The
confidential informant can be heard to say, “You gonna do me good?” It appears that
Roberts hugs the confidential informant. The confidential informant leaves the residence
and drives back to MERTECH.
{¶66} Evidence was presented during Roberts’s jury trial that the confidential
informant and the vehicle were searched both before and after returning on April 30, 2019
and May 9, 2019. 2T. at 274-276; 317-319; 3T. at 494-496. The confidential informant
was fitted with the transmitter/recording device. 3T. at 494-496. The confidential informant
Richland County, Case No. 2020 CA 0035 22
was provided with buy money that had been photocopied for the purpose of later
identifying it. 2T. at 275; 319. Law enforcement officers followed the confidential informant
to the house and back to MERTECH. 2T. at 275-276. Law enforcement officers took
possession of the drugs and the recording device, and once again searched her and her
vehicle. 2T. at 276; 319.
{¶67} Roberts had in his wallet at the time of his arrest on May 10, 2019 ninety
dollars of the one hundred eighty dollar buy money used by the confidential informant to
purchase the drugs on May 9, 2019. 2T. at 355. The drugs purchased by the confidential
informant were submitted to the laboratory. The video was downloaded while being
watched and burned to disks. 3T. at 495-496. An integrity report was run to establish the
video had not been altered. 3T. at 495.
{¶68} If the state relies on circumstantial evidence to prove an essential element
of an offense, it is not necessary for “such evidence to be irreconcilable with any
reasonable theory of innocence in order to support a conviction.” State v. Jenks, 61 Ohio
St.3d 259, 272, 574 N.E.2d 492(1991), paragraph one of the syllabus, superseded by
State constitutional amendment on other grounds as stated in State v. Smith, 80 Ohio
St.3d 89, 684 N.E.2d 668(1997). “Circumstantial evidence and direct evidence inherently
possess the same probative value [.]” Jenks, 61 Ohio St.3d at paragraph one of the
syllabus. Furthermore, “[s]ince circumstantial evidence and direct evidence are
indistinguishable so far as the jury's fact-finding function is concerned, all that is required
of the jury is that i[t] weigh all of the evidence, direct and circumstantial, against the
standard of proof beyond a reasonable doubt.“ Jenks, 61 Ohio St.3d at 272, 574 N.E.2d
492. While inferences cannot be based on inferences, a number of conclusions can result
Richland County, Case No. 2020 CA 0035 23
from the same set of facts. State v. Lott, 51 Ohio St.3d 160, 168, 555 N.E.2d 293(1990),
citing, Hurt v. Charles J. Rogers Transp. Co, 164 Ohio St. 329, 331, 130 N.E.2d
820(1955). Moreover, a series of facts and circumstances can be employed by a jury as
the basis for its ultimate conclusions in a case. Lott, 51 Ohio St.3d at 168, 555 N.E.2d
293, citing Hurt, 164 Ohio St. at 331, 130 N.E.2d 820.
{¶69} Viewing the evidence in a light most favorable to the prosecution, we
conclude that a reasonable person could have found beyond a reasonable doubt that
Roberts aided and abetted in knowingly selling or offering to sell controlled substances
as alleged in Case Number 19 CR 403, Counts 1, 2 and 3. We hold, therefore, that the
state met its burden of production regarding the element of trafficking in a fentanyl related
substance, heroin and cocaine, and, accordingly, there was sufficient evidence to support
Roberts’s convictions.
Standard of Appellate Review – Manifest Weight.
{¶70} As to the weight of the evidence, the issue is whether the jury created a
manifest miscarriage of justice in resolving conflicting evidence, even though the
evidence of guilt was legally sufficient. State v. Thompkins, 78 Ohio St.3d 380, 386–387,
678 N.E.2d 541 (1997), superseded by constitutional amendment on other grounds as
stated by State v. Smith, 80 Ohio St.3d 89, 684 N.E.2d 668, 1997–Ohio–355; State v.
Issa, 93 Ohio St.3d 49, 67, 752 N.E.2d 904 (2001).
“[I]n determining whether the judgment below is manifestly against
the weight of the evidence, every reasonable intendment and every
reasonable presumption must be made in favor of the judgment and the
finding of facts.
Richland County, Case No. 2020 CA 0035 24
***
“If the evidence is susceptible of more than one construction, the reviewing
court is bound to give it that interpretation which is consistent with the
verdict and judgment, most favorable to sustaining the verdict and
judgment.”
Seasons Coal Co., Inc. v. Cleveland, 10 Ohio St.3d 77, 80, 461 N.E.2d 1273 (1984), fn.
3, quoting 5 Ohio Jurisprudence 3d, Appellate Review, Section 60, at 191–192 (1978).
{¶71} The reviewing court must bear in mind, however, that credibility generally is
an issue for the trier of fact to resolve. State v. Issa, 93 Ohio St.3d 49, 67, 752 N.E.2d
904 (2001); State v. Murphy, 4th Dist. Ross No. 07CA2953, 2008–Ohio–1744, ¶ 31.
Because the trier of fact sees and hears the witnesses and is particularly competent to
decide whether, and to what extent, to credit the testimony of particular witnesses, the
appellate court must afford substantial deference to its determinations of credibility.
Barberton v. Jenney, 126 Ohio St.3d 5, 2010–Ohio–2420, 929 N.E.2d 1047, ¶ 20. In
other words, “[w]hen there exists two fairly reasonable views of the evidence or two
conflicting versions of events, neither of which is unbelievable, it is not our province to
choose which one we believe.” State v. Dyke, 7th Dist. Mahoning No. 99 CA 149, 2002–
Ohio–1152, at ¶ 13, citing State v. Gore, 131 Ohio App.3d 197, 201, 722 N.E.2d 125(7th
Dist. 1999). Thus, an appellate court will leave the issues of weight and credibility of the
evidence to the fact finder, as long as a rational basis exists in the record for its decision.
State v. Picklesimer, 4th Dist. Pickaway No. 11CA9, 2012–Ohio–1282, ¶ 24.
{¶72} Once the reviewing court finishes its examination, an appellate court may
not merely substitute its view for that of the jury, but must find that “ ‘the jury clearly lost
Richland County, Case No. 2020 CA 0035 25
its way and created such a manifest miscarriage of justice that the conviction must be
reversed and a new trial ordered.’” State v. Thompkins, supra, 78 Ohio St.3d at 387,
quoting State v. Martin, 20 Ohio App.3d 172, 175, 485 N.E.2d 717, 720–721(1st Dist.
1983). Accordingly, reversal on manifest weight grounds is reserved for “the exceptional
case in which the evidence weighs heavily against the conviction.” Id.Issue for Appellate Review: Whether the jury clearly lost their way and created
such a manifest miscarriage of justice that the conviction must be reversed and a new
trial ordered.
{¶73} The jury as the trier of fact was free to accept or reject any and all of the
evidence offered by the parties and assess the witness’s credibility. “While the trier of
fact may take note of the inconsistencies and resolve or discount them accordingly * * *
such inconsistencies do not render defendant’s conviction against the manifest weight or
sufficiency of the evidence.” State v. Craig, 10th Dist. Franklin No. 99AP–739, 1999 WL
29752 (Mar 23, 2000) citing State v. Nivens, 10th Dist. Franklin No. 95APA09–1236, 1996
WL 284714 (May 28, 1996). Indeed, the trier of fact need not believe all of a witness’
testimony, but may accept only portions of it as true. State v. Raver, 10th Dist. Franklin
No. 02AP–604, 2003–Ohio–958, ¶ 21, citing State v. Antill, 176 Ohio St. 61, 67, 197
N.E.2d 548 (1964); State v. Burke, 10th Dist. Franklin No. 02AP–1238, 2003–Ohio–2889,
citing State v. Caldwell, 79 Ohio App.3d 667, 607 N.E.2d 1096 (4th Dist. 1992). Although
the evidence may have been circumstantial, we note that circumstantial evidence has the
same probative value as direct evidence. State v. Jenks, 61 Ohio St.3d 259, 272, 574
N.E.2d 492 (1991), paragraph one of the syllabus, superseded by State constitutional
Richland County, Case No. 2020 CA 0035 26
amendment on other grounds as stated in State v. Smith, 80 Ohio St.3d 89, 102 at n.4,
684 N.E.2d 668 (1997).
{¶74} In the case at bar, the jury heard the witnesses and viewed the evidence.
The jury saw the witnesses subject to cross-examination. The jury heard Roberts’s
attorney’s arguments and explanations about the evidence and his actions. Further, the
jury was able to view the events in real-time through the body cameras and pictures from
the officers involved. The jury found Roberts not guilty of all six counts and specifications
in Case Number 19-CR-404 and one count in Case Number 19-CR-399. Thus, a rational
basis exists in the record for the jury’s decision.
{¶75} We find that this is not an “‘exceptional case in which the evidence weighs
heavily against the conviction.’” State v. Thompkins, 78 Ohio St.3d 380, 386–387, 678
N.E.2d 541 (1997), quoting Martin, 20 Ohio App.3d at 175, 485 N.E.2d 717. Based upon
the foregoing and the entire record in this matter we find Roberts’s convictions are not
against the sufficiency or the manifest weight of the evidence. To the contrary, the jury
appears to have fairly and impartially decided the matters before them. The jury heard
the witnesses, evaluated the evidence, and was convinced of Roberts’s guilt. The jury
neither lost their way nor created a miscarriage of justice in convicting Roberts of the
offenses.
{¶76} Finally, upon careful consideration of the record in its entirety, we find that
there is substantial evidence presented which if believed, proves all the elements of the
crimes for which Roberts was convicted.
{¶77} Roberts’s Fourth Assignment of Error is overruled.
V.
Richland County, Case No. 2020 CA 0035 27
{¶78} In his Fifth Assignment of Error, Roberts argues first that the sentences
imposed by the trial court is inconsistent with the purposes of felony sentencing, and further
that the imposition of consecutive sentences was not supported by the record.
Standard of Appellate Review.
{¶79} We review felony sentences using the standard of review set forth in R.C.
2953.08. State v. Marcum, 146 Ohio St.3d 516, 2016–Ohio–1002, 59 N.E.3d 1231, ¶22;
State v. Howell, 5th Dist. Stark No. 2015CA00004, 2015-Ohio-4049, ¶31. R.C.
2953.08(G)(2) provides we may either increase, reduce, modify, or vacate a sentence
and remand for resentencing where we clearly and convincingly find that either the record
does not support the sentencing court’s findings under R.C. 2929.13(B) or (D),
2929.14(B)(2)(e) or (C)(4), or 2929.20(I), or the sentence is otherwise contrary to law.
See, also, State v. Bonnell, 140 Ohio St.3d 209, 2014–Ohio–3177, 16 N.E.2d 659, ¶28.
{¶80} Clear and convincing evidence is that evidence “which will provide in the
mind of the trier of facts a firm belief or conviction as to the facts sought to be established.”
Cross v. Ledford, 161 Ohio St. 469, 120 N.E.2d 118(1954), paragraph three of the
syllabus. See also, In re Adoption of Holcomb, 18 Ohio St.3d 361 (1985). “Where the
degree of proof required to sustain an issue must be clear and convincing, a reviewing
court will examine the record to determine whether the trier of facts had sufficient
evidence before it to satisfy the requisite degree of proof.” Cross, 161 Ohio St. at 477
120 N.E.2d 118.
{¶81} Recently, the Ohio Supreme Court reviewed the issue of “whether a
sentence is “contrary to law” under R.C. 2953.08(G)(2)(b) when an appellate court finds
that the record does not support a sentence with respect to R.C. 2929.11 and 2929.12.”
Richland County, Case No. 2020 CA 0035 28
State v. Jones, Oh. Sup. Ct. No. 2018-0444, 2020-Ohio-6729, 2020 WL 7409669(Dec.
18, 2020).2 A plurality of the Court in Jones found,
Nothing in R.C. 2953.08(G)(2) permits an appellate court to
independently weigh the evidence in the record and substitute its judgment
for that of the trial court concerning the sentence that best reflects
compliance with R.C. 2929.11 and 2929.12. In particular, R.C.
2953.08(G)(2) does not permit an appellate court to conduct a freestanding
inquiry like the independent sentence evaluation this court must conduct
under R.C. 2929.05(A) when reviewing a death penalty-sentence. See
State v. Hundley, ––– Ohio St.3d ––––, 2020-Ohio-3775, ––– N.E.3d ––, ¶
128 (recognizing that R.C. 2929.05(A) requires de novo review of findings
and other issues within its scope).
2020-Ohio-6729, 2020 WL 7409669, ¶ 42. The Court in Jones noted that,
R.C. 2953.08(G)(2)(a) permits an appellate court to modify or vacate
a sentence if it clearly and convincingly finds that “the record does not
support the sentencing court’s findings under” certain specified statutory
provisions. But R.C. 2929.11 and 2929.12 are not among the statutory
provisions listed in R.C. 2953.08(G)(2)(a). Only R.C. 2929.13(B) and (D),
2929.14(B)(2)(e) and (C)(4), and 2929.20(I) are specified.
2020-Ohio-6729, 2020 WL 7409669, ¶ 28. The plurality concluded,
2 We note that Jones was decided after briefs were filed in the case at bar. However, Jones does
not change the law; rather, Jones simply clarifies existing law and precedents.
Richland County, Case No. 2020 CA 0035 29
R.C. 2953.08(G)(2)(b) therefore does not provide a basis for an
appellate court to modify or vacate a sentence based on its view that the
sentence is not supported by the record under R.C. 2929.11 and 2929.12.
2020-Ohio-6729, 2020 WL 7409669, ¶39. The Court clarified,
The statements in Marcum at ¶ 23 suggesting that it would be “fully
consistent” with R.C. 2953.08(G) for an appellate court to modify or vacate
a sentence when the record does not support the sentence under R.C.
2929.11 or 2929.12 were made only in passing and were not essential to
this court’s legal holding. The statements are therefore dicta.
2020-Ohio-6729, 2020 WL 7409669, ¶ 27.
Issue for Appellate Review: Whether the record clearly and convincing does
not support Roberts’s sentence under 2929.13(B) and (D), 2929.14(B)(2)(e) and (C)(4),
and 2929.20(I).
R.C. 2929.13(B).
{¶82} R.C. 2929.13(B) applies to one convicted of a fourth or fifth degree felony.
Roberts was convicted of two felonies of the fourth degree and one felony of the fifth
degree. In relevant part the statute provides,
(B)(1)(a) Except as provided in division (B)(1)(b) of this section, if an
offender is convicted of or pleads guilty to a felony of the fourth or fifth
degree that is not an offense of violence or that is a qualifying assault
offense, the court shall sentence the offender to a community control
sanction or combination of community control sanctions if all of the following
apply:
Richland County, Case No. 2020 CA 0035 30
(i) The offender previously has not been convicted of or pleaded
guilty to a felony offense.
(ii) The most serious charge against the offender at the time of
sentencing is a felony of the fourth or fifth degree.
(iii) If the court made a request of the department of rehabilitation and
correction pursuant to division (B)(1)(c) of this section, the department,
within the forty-five-day period specified in that division, provided the court
with the names of, contact information for, and program details of one or
more community control sanctions that are available for persons sentenced
by the court.
Emphasis added. In addition, R.C. 2929.13(B)(1)(b)(ix) expressly recognizes a trial
court’s “discretion to impose a prison term” on a defendant who is found guilty of a fifth-
degree felony and “previously had served * * * a prison term.” See State v. Lawson, 2018-
Ohio-1532, 111 N.E.3d 98, ¶ 16 (2nd Dist.), citing State v. Robinson, 2nd Dist. Champaign
No. 2012-CA-17, 2012-Ohio-4976, ¶ 22, and State v. Parker, 8th Dist. Cuyahoga No.
104610, 2017-Ohio-4294, ¶ 6-10; See also, State v. Chatterton, 2nd Dist. Miami No. 2020-
CA-2, 2020-Ohio-5350, ¶5. Finally, R.C. 2929.13(B)(1)(b)(v)(i)(i)(i) provides a trial court
discretion to impose a prison term on a defendant who is found guilty of a fourth or fifth
degree felony if the court finds that the offender committed the offense for hire or as part
of an organized criminal activity.
{¶83} Roberts has two prior felony convictions. 5T. at 742. The legislature did not
impose a time limit upon the prior felony convictions, unlike R.C. 2929.13(B)(1)(a)(iii)
which provides, “(iii) The offender previously has not been convicted of or pleaded guilty
Richland County, Case No. 2020 CA 0035 31
to a misdemeanor offense of violence that the offender committed within two years prior
to the offense for which sentence is being imposed.” Emphasis added.
{¶84} Furthermore, Roberts’s sentences were within the statutory sentencing
range and therefore there is nothing to indicate that the sentence is contrary to law.
R.C. 2929.13(C).
{¶85} R.C. 2929.13(C) applies to one convicted of a third degree felony. This
provision therefore does not apply in Roberts’s case.
R.C. 2929.13(D).
{¶86} R.C. 2929.13(D) (1) applies to one convicted of a felony of the first or
second degree, for a felony drug offense that is a violation of any provision of Chapter
2925., 3719., or 4729. of the Revised Code for which a presumption in favor of a prison
term is specified as being applicable, and for a violation of division (A)(4) or (B) of section
2907.05 of the Revised Code for which a presumption in favor of a prison term is specified
as being applicable.
{¶87} Roberts was not convicted of a felony of the first or second degree.
Accordingly, R.C. 2929.13(D) does not apply to Roberts’s case.
R.C. 2929.14 (B)(2)(e).
{¶88} R.C. 2929.14(B)(2)(e) concerns additional prison sentences that a trial court
can impose upon a defendant under specified circumstances. Roberts was not given an
additional prison sentence.
R.C. 2929.14 (C)(4) Consecutive Sentences.
{¶89} R.C. 2929.14(C)(4) concerns the imposition of consecutive sentences.
Richland County, Case No. 2020 CA 0035 32
{¶90} In Ohio, there is a statutory presumption in favor of concurrent sentences
for most felony offenses. R.C. 2929.41(A). The trial court may overcome this presumption
by making the statutory, enumerated findings set forth in R.C. 2929.14(C) (4). State v.
Bonnell, 140 Ohio St.3d 209, 2014-Ohio-3177, 16 N.E.3d 659, ¶ 23. This statute requires
the trial court to undertake a three-part analysis. State v. Alexander, 1st Dist. Hamilton
Nos. C–110828 and C–110829, 2012-Ohio-3349, 2012 WL 3055158, ¶ 15.
{¶91} R.C. 2929.14(C)(4) provides,
If multiple prison terms are imposed on an offender for convictions of
multiple offenses, the court may require the offender to serve the prison
terms consecutively if the court finds that the consecutive service is
necessary to protect the public from future crime or to punish the offender
and that consecutive sentences are not disproportionate to the seriousness
of the offender’s conduct and to the danger the offender poses to the public,
and if the court also finds any of the following:
(a) The offender committed one or more of the multiple offenses
while the offender was awaiting trial or sentencing, was under a sanction
imposed pursuant to section 2929.16, 2929.17, or 2929.18 of the Revised
Code, or was under post-release control for a prior offense.
(b) At least two of the multiple offenses were committed as part of
one or more courses of conduct, and the harm caused by two or more of
the multiple offenses so committed was so great or unusual that no single
prison term for any of the offenses committed as part of any of the courses
of conduct adequately reflects the seriousness of the offender’s conduct.
Richland County, Case No. 2020 CA 0035 33
(c) The offender’s history of criminal conduct demonstrates that
consecutive sentences are necessary to protect the public from future crime
by the offender.
{¶92} Thus, in order for a trial court to impose consecutive sentences the court
must find that consecutive sentences are necessary to protect the public from future crime
or to punish the offender. The court must also find that consecutive sentences are not
disproportionate to the offender’s conduct and to the danger the offender poses to the
public. Finally, the court must make at least one of three additional findings, which include
that (a) the offender committed one or more of the offenses while awaiting trial or
sentencing, while under a sanction imposed under R.C. 2929.16, 2929.17, or 2929.18,
or while under post-release control for a prior offense; (b) at least two of the multiple
offenses were committed as part of one or more courses of conduct, and the harm caused
by two or more of the offenses was so great or unusual that no single prison term for any
of the offenses committed as part of any of the courses of conduct would adequately
reflect the seriousness of the offender’s conduct; or (c) the offender’s criminal history
demonstrates that consecutive sentences are necessary to protect the public from future
crime by the offender. See, State v. White, 5th Dist. Perry No. 12-CA-00018, 2013-Ohio-
2058, ¶ 36.
{¶93} In State v. Bonnell, 140 Ohio St.3d 209, 2014–Ohio–3177, 16 N.E.2d 659,
syllabus, the Supreme Court of Ohio stated that:
In order to impose consecutive terms of imprisonment, a trial court is
required to make the findings mandated by R.C. 2929.14(C)(4) at the
Richland County, Case No. 2020 CA 0035 34
sentencing hearing and incorporate its findings into its sentencing entry, but
it has no obligation to state reasons to support its findings.
{¶94} Furthermore, the sentencing court is not required to recite “a word-for-word
recitation of the language of the statute.” Bonnell, ¶ 29. “[A]s long as the reviewing court
can discern that the trial court engaged in the correct analysis and can determine that the
record contains evidence to support the findings, consecutive sentences should be
upheld.” Id. A failure to make the findings required by R.C. 2929.14(C)(4) renders a
consecutive sentence contrary to law. Bonnell, ¶ 34. The findings required by R.C.
2929.14(C)(4) must be made at the sentencing hearing and included in the sentencing
entry. Id. at the syllabus. However, a trial court’s inadvertent failure to incorporate the
statutory findings in the sentencing entry after properly making those findings at the
sentencing hearing does not render the sentence contrary to law; rather, such a clerical
mistake may be corrected by the court through a nunc pro tunc entry to reflect what
actually occurred in open court. Bonnell, ¶ 30.
{¶95} In this case, the record does support a conclusion that the trial court made
all of the findings required by R.C. 2929.14(C)(4) at the time it imposed consecutive
sentences.
R.C. 2929.14(C)(4): [T]he court may require the offender to serve the prison
terms consecutively if the court finds that the consecutive service is necessary to
protect the public from future crime or to punish the offender and that consecutive
sentences are not disproportionate to the seriousness of the offender’s conduct
and to the danger the offender poses to the public.
{¶96} The trial court considered this factor. 5T. at 752-753.
Richland County, Case No. 2020 CA 0035 35
R.C. 2929.14(C)(4)(a): The offender committed one or more of the multiple
offenses while the offender was awaiting trial or sentencing, was under a sanction
imposed pursuant to section 2929.16, 2929.17, or 2929.18 of the Revised Code, or
was under post-release control for a prior offense.
{¶97} This provision does not apply to Roberts’s case.
R.C. 2929.14(C)(4)(b): At least two of the multiple offenses were committed
as part of one or more courses of conduct, and the harm caused by two or more of
the multiple offenses so committed was so great or unusual that no single prison
term for any of the offenses committed as part of any of the courses of conduct
adequately reflects the seriousness of the offender’s conduct.
{¶98} The trial court considered this factor. 5T. at 752-753.
R.C. 2929.14(C)(4)(c): The offender’s history of criminal conduct
demonstrates that consecutive sentences are necessary to protect the public from
future crime by the offender.
{¶99} The trial court considered this factor. 5T. at 752-753.
R.C. 2929.20.
{¶100} R.C. 2929.20 (I) is inapplicable, as Roberts was not applying to the court
for judicial release.
{¶101} The fact that Roberts received a different sentence from his co-defendant
does not in and of itself establish that Roberts was punished for going to trial. The record
precludes meaningful comparison of Roberts’s sentence to that of his co-defendant. We
have neither the pre-sentence investigation report nor the transcript concerning the trial
Richland County, Case No. 2020 CA 0035 36
court’s sentencing of the co-defendant. The record, such as it is, indicates that the co-
defendant entered a negotiated guilty plea to one count. 5T. at 754.
{¶102} In State v. Hill, 70 Ohio St.3d 25, 635 N.E.2d 1248(1994), the defendant
was convicted of complicity to trafficking in marijuana, and sentenced to one year in prison
and further ordered to forfeit his apartment complex. His co-defendant received probation
instead of a prison sentence. Id. at 29, 635 N.E.2d at 1252. On appeal, he argued that
the trial court abused its discretion by giving him a harsher sentence than was given his
co-defendant. Id. The Ohio Supreme Court observed,
There is no question that on its face the sentence received by
appellant, when compared to Newbauer’s punishment, is disproportionate.
Given the fact that Newbauer received probation, appellant’s one-year
prison sentence does appear to be harsh. However, as a general rule, an
appellate court will not review a trial court’s exercise of discretion in
sentencing when the sentence is authorized by statute and is within the
statutory limits. See, generally, Toledo v. Reasonover (1965), 5 Ohio St.2d
22, 24, 34 O.O.2d 13, 14, 213 N.E.2d 179, 180-181. See, also, State v.
Cassidy (1984), 21 Ohio App.3d 100, 102, 21 OBR 107, 108-109, 487
N.E.2d 322, 323; State v. Burge (1992), 82 Ohio App.3d 244, 249, 611
N.E.2d 866, 869; and State v. Grigsby (1992), 80 Ohio App.3d 291, 302,
609 N.E.2d 183, 190.
70 Ohio St.3d at 29, 1994-Ohio-2, 635 N.E.2d 1248. Roberts cites no precedent, or any
other authority, for reversal of an otherwise valid sentence on the basis that more culpable
co-defendants were not punished more severely. There is no requirement that co-
Richland County, Case No. 2020 CA 0035 37
defendant’s receive equal sentences. State v. Lloyd, 11th Dist. Lake No. 2002-L-069,
2003-Ohio-6417 at ¶ 21; United State v. Frye, 831 F.2d 664, 667(6th Cir. 1987). Each
defendant is different and nothing prohibits a trial court from imposing two different
sentences upon individuals convicted of similar crimes. State v. Aguirre, 4th Dist. Gallia
No. 03CA5, 2003-Ohio-4909, ¶ 50. In this case, there is nothing in the record to show that
the difference in Roberts’s sentence from that of his co-defendant was the result of
anything other than the individualized factors that were applied to Roberts. State v.
Beasley, 8th Dist. Cuyahoga No. 82884, 2004-Ohio-988, ¶ 23.
{¶103} We conclude that the trial court did not commit error when it sentenced
Roberts to a sentence that differed from his co-defendant. Upon review, we find that the
trial court’s sentencing on the charges complies with applicable rules and sentencing
statutes. The sentence was within the statutory sentencing range. R.C. 2953.08(G)(2)(b)
does not provide a basis for an appellate court to modify or vacate a sentence based on
its view that the sentence is not supported by the record under R.C. 2929.11 and
2929.12. State v. Jones, Oh. Sup. Ct. No. 2018-0444, 2020-Ohio-6729, 2020 WL
7409669(Dec. 18, 2020), ¶39.
{¶104} Roberts’s Fifth Assignment of Error is overruled.
Richland County, Case No. 2020 CA 0035 38
{¶105} The judgment of the Richland County Court of Common Pleas is affirmed.
By Gwin, P.J.,
Wise, John, J., and
Wise, Earle E., J., concur